Blog 124 B-411531 Major William Fisher MTD W912D1-15-R-0036 - PowerPoint PPT Presentation

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Blog 124 B-411531 Major William Fisher MTD W912D1-15-R-0036

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  1. Latvian Connection LLC Shareefa Complex 5th Floor Kuwait City, Kuwait Tel: 011 385 9344 June 5, 2015 BY REGISTERED EMAIL Ms. Mary Curcio Government Accounting Office 441 G Street, NW Washington DC 20548 Email: Protests@gao.gov Attn: Procurement Law Control Group, Room 1139 RE: RESPONSE TO ARMY MOTION TO DISMISS RFQ 912D1-15-R-0036 APPLIANCES - NEGATIVE DETERMINATION BY CAMP ARIFJAN CONTRACTING CONTRACTING OFFICER MAJ FISHER and LEGAL COUNSEL CHARLES WILDER Dear Ms. Curcio: BACKGROUND DECEMBER 31, 2014 W912D1-15-R-0007 Camp Arifjan, Kuwait, conducted a solicitation for furniture with a value of less than $ 150,000 (Exhibits 0007 ) and the Army cancelled the solicitation under the pre-text that they would solicit as a set aside. (Exhibit 0007, Cancellation ) MARCH 31, 2015 W912D1-15-R-0012 BUNDLED Camp Arifjan brought out a $ 10 Mil bundled solicitation that combined office furniture, dorm furniture, appliances, beds, mattresses, and a host of other items with a delivery in 20 days which no supplier in Kuwait could provide and still could not provide when the Army extended the delivery date to 30 days. Latvian Connection LLC protested and the Army was caused to unbundle the requirements which have always been ordered in groups of items similar and not bundled. May 09, 2015 W912D1-15-R-0036 Appliances Camp Arifjan privately issued an APPLIANCE solicitation and excluded Latvian Connection LLC and the Army have made a negative determination without referring the matter to the SBA The bid is due in on 14 MAY 2015. )))))) PLEASE INVITE THE SMALL BUSINESS ADMINISTRATION TO COMMENT ((((((((((((( 14 MAY 2015 LATVIAN INVITED TO BID AT 4 :58 PM 14 MAY 2015 BID DUE IN DATE CLOSED 14 MAY 2015 MAJOR FISHER and LEGAL COUNSEL CHARLES WILDER DID NOT EXTEND BID DUE IN DATE AND TIME. Ms. Curcio, the Army’s actions are arbitrary and capricious. The Army is violating Latvian Connection LLC’s statutory right to bid and be afforded a reasonable length of time. What is apparent is that Latvian Connection LLC is a victim of the Army’s discrimination and their ongoing violations of Federal Laws, Regulations, and Statutes. As a Veteran of the United States Air Force that served honorably, I take offense to the Army’s actions and filed a GAO protest. And the Army and the Dept of Defense can continue to expect that their prejudice of Latvian Connection LLC will be met with further GAO Level protests to address their contracting irregularities. RESPONSE TO MOTION TO DISMISS W912D1-15-R-0036 CAMP ARIFIJAN’S 926TH & 408TH APPLIANCES

  2. This is not an academic protest by any means and it is not a case of FAR 15.206 and not being an original bidder for W91D21-15-R-0012. It could be, that the Army is still plagued by inexperience contracting officers even though they proclaimed to Congress in 2007 that they would be fully staffed with competent contracting officers in 4 years. Those 4 years passed Ms. Curcio and this is the professionalism that we Veteran’s see. We receive the solicitation officially from MAJ Fisher with 2 minutes until the bid due in time (ATTCH 6 ) The Army’s legal counsel has also violated Latvian Connection LLC’s statutory right to bid (ATTCH 7) Since the Contracting Officer that prejudiced us realizes that we are a Veteran Owned Small Business and would fall into the category on the solicitation where he would have enough U.S. Small Businesses to qualify as the Rule of 2, and exclude the majority of the foreign owned businesses, MAJ Fisher has failed to follow his own solicitation words: SPECIAL NOTE If the Government receives from two or more responsible small business concerns offers that are competitive in terms of market prices, offer compliance with delivery requirements, and are otherwise technically acceptable, no offers from other than small business concerns will be considered for award. In such event, FAR 52.219-6 (Notice of Small Business Set- Aside) shall be incorporated by reference and shall take effect. Otherwise all offers, including offers from other than small business concerns, will be considered for award. This was a new solicitation that was intentionally withheld from Latvian and this has a Rule of 2 embedded in the solicitation and the contracting officer made a negative determination without first getting a Certificate of Competency from the Small Business Administration. The GAO has ruled that the Agency may not make a negative determination in B- 408627 AeroSage LLC, B-410947 Latvian against the State Department / FEDBID, and B-410981 Latvian against the Department of Interior / FEDBID Apparently Charles Wilder did not advise his contracting officer that W912D1-15-R-0012 was cancelled and FAR 15.206 does not apply to W912D1-15-R-0036. MAJ Fisher, and his legal team including Charles Wilder and the Contracting Commander, LTC Christy violated the Small Business Act when they excluded Latvian Connection LLC. They violated Latvian Connection LLCs right to bid as a U.S. Small Business. The negative determination is stated by MAJ Fisher in his KO statement. 2. RCC-KU by subject solicitation requested quotations from 55 sources that had shown interest in solicitation W912D1-15-R-0012, which we had posted on FedbizzOps through ASFI but was protested for alleged excess consolidation as an intended MATOC. I authorized release of subject Request for Quotations by email on 9 May 2015 [Appliances] for Soldier and Civilian housing on Camp Arifjan Kuwait to these 55 sources. The solicitation closed on 14 May 2015. I did not initially solicit Latvian Connection LLC , although it had protested W912D1- 15-R-0012, because it had not submitted a quote for W912D1-15-R-0012 and because it has not actually engaged in any business in Kuwait. 3. When Latvian Connection LLC learned of the subject request for quotations and requested it, I initially refused to provide it the request for quotation, because I already had solicited adequate competition by sources within the local trade area who had actually exhibited previous interest in solicitation W912D1-15-R-0012 and regularly engage in business locally. RESPONSE TO MOTION TO DISMISS W912D1-15-R-0036 CAMP ARIFIJAN’S 926TH & 408TH APPLIANCES

  3. The contracting officer AND their LEGAL counsel, Charles Wilder have violated Latvian Connection LLC’s statutory right to bid under FAR 19.202-2 and FAR 19.202-4 when he specifically knows that Latvian Connection LLC is in Kuwait and was the company to file 2 previous protests against the Army not settings aside a solicitation with a value of under $ 150,000 (B-410946 ) and then the next solicitation that MAJ Fisher and his legal advisors concocted (B-411325 W91D21- 15-R-0012). MAJ Fisher and the institution of the Army has made a negative determination to exclude Latvian Connection LLC and violated the authority of the Small Business Administration and the Federal Acquisition Regulations and GAO rulings that tell MAJ Fisher and his “legal team” that they may not make a negative determination without first referring the matter to the Small Business Administration. What MAJ Fisher is stating is that he made a negative determination and excluded Latvian Connection LLC. B-408627 To the extent that the CO’s decision not to award to AeroSage was based on a concern that AeroSage would be unable to timely deliver the fuel, see COS at 2, this would appear to be a negative responsibility determination. See FAR § 9.104- 1(b). In such case, the CO’s action would have deprived AeroSage, a small business, of its statutory right to have a negative responsibility determination reviewed by the Small Business Administration (SBA) under the Certificate of Competency process. See FAR § 9.104-3(d)(1); see, e.g., Fabritech, Inc., B-298247, B-298247.2, July 27, 2006, 2006 CPD ¶ 112 at 3-6; F & F Pizano Trucking Co., Inc., B-212769, Nov. 30, 1983, 83-2 CPD ¶ 629 at 1-2 (notwithstanding finding of urgency, contacting officer acted improperly in rejecting a small business as nonresponsible without referring the matter to SBA). B-410947 As a result, we conclude that the DOS, through its agent, FedBid, precluded Latvian Connection, a small business, from competing for, and potentially being awarded, a contract on the basis of the firm’s integrity, without referring the matter to the SBA. This amounted to a determination of nonresponsibility, which the agency should have referred to the SBA for a COC determination. Therefore, we sustain the protest on this basis. B-410981 Latvian Connection argues that its exclusion from the competition here constituted a negative responsibility determination with respect to a small business, which therefore should have been referred to the SBA under its Certificate of Competency (COC) procedures. Protest at 14. In a recent decision, our Office sustained Latvian Connection’s protest against FedBid’s exclusion of the protester from the competition under a Department of State procurement. In that case, in response to our request for its comments, SBA stated that the actions of FedBid, acting as the agent for the contracting activity, in excluding a potential vendor based on a perceived lack of business integrity, constituted a de facto nonresponsibility determination, which should have been referred to the SBA under its COC. The Army has made an ongoing and institutional-wide ( to include Camp Arifjan’s legal staff that have violated the Professional Rules of Conduct in advising the Army that they may violate Federal Laws, Regulations and Statutes ) This is not academic Ms. Curcio and we hope that the Small Business Administration will be invited to comment on the Army’s ongoing negative determination of Veteran Owned Small Business, Latvian Connection LLC and the ongoing prejudice of our business. We’d like to give a much more detailed response, but need one additional day. If we are not granted this additional time, then this will serve as our response to the Army’s motion to Dismiss. There is much more to our Protest than just being invited. There is a Rule of 2 discussion and legal citations that need to be addressed as well as some other points. We respectfully request one additional day so that we can really tell the GAO with more supporting documentation in a better format what Latvian Connection LLC has been suffering through since June 2009 and how the Army really treats Veterans. RESPONSE TO MOTION TO DISMISS W912D1-15-R-0036 CAMP ARIFIJAN’S 926TH & 408TH APPLIANCES

  4. Army Contracting Command continues to violate the Small Business Act and discriminate against Latvian Connection LLC and in this case, the Contracting Officer, at the direction of the Army Contracting Commander and the Army’s Legal Counsel, Mr. Charles Wilder, have made a Negatvie Determination that Latvian Connection LLC will not be invited to bid without referring the negative determination to the Small Business Administration for their review. The Army have once again violated: 19.202-2 Locating small business sources. The contracting officer must, to the extent practicable, encourage maximum participation by small business, veteran- owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in acquisitions by taking the following actions: (a) Before issuing solicitations, make every reasonable effort to find additional small business concerns, unless lists are already excessively long and only some of the concerns on the list will be solicited. This effort should include contacting the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)). (b) Publicize solicitations and contract awards through the Governmentwide point of entry (see Subparts 5.2 and 5.3). 19.202-4 Solicitation. The contracting officer must encourage maximum response to solicitations by small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns by taking the following actions: (a) Allow the maximum amount of time practicable for the submission of offers. (b) Furnish specifications, plans, and drawings with solicitations, or furnish information as to where they may be obtained or examined. (c) Provide to any small business concern, upon its request, a copy of bid sets and specifications with respect to any contract to be let, the name and telephone number of an agency contact to answer questions related to such prospective contract and adequate citations to each major Federal law or agency rule with which such business concern must comply in performing such contract other than laws or agency rules with which the small business must comply when doing business with other than the Government. 5.202 Exceptions. 5.202 Exceptions. The contracting officer need not submit the notice required by 5.201 when-- (a) The contracting officer determines that-- (12) The contract action is by a Defense agency and the contract action will be made and performed outside the United States, its possessions, or Puerto Rico, and only local sources will be solicited. (b) The head of the agency determines in writing, after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that advance notice is not appropriate or reasonable. Latvian Connection LLC is LOCAL and is being excluded – the Army are violating the Procurement Integrity of this solicitation and tampering with the bidding results due to the Organizational Conflicts of Interest and ongoing discrimination of Veteran Owned Small Business – Latvian Connection LLC. The Army are violating FAR 9.601 and the Teaming allowed for any business. 9.601 Definition. “Contractor team arrangement,” as used in this subpart, means an arrangement in which— (1) Two or more companies form a partnership or joint venture to act as a potential prime contractor; or RESPONSE TO MOTION TO DISMISS W912D1-15-R-0036 CAMP ARIFIJAN’S 926TH & 408TH APPLIANCES

  5. (2) A potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified Government contract or acquisition program. 9.602 General. (a) Contractor team arrangements may be desirable from both a Government and industry standpoint in order to enable the companies involved to— (1) Complement each other’s unique capabilities; and (2) Offer the Government the best combination of performance, cost, and delivery for the system or product being acquired. (b) Contractor team arrangements may be particularly appropriate in complex research and development acquisitions, but may be used in other appropriate acquisitions, including production. (c) The companies involved normally form a contractor team arrangement before submitting an offer. However, they may enter into an arrangement later in the acquisition process, including after contract award. 9.603 Policy. The Government will recognize the integrity and validity of contractor team arrangements; provided, the arrangements are identified and company relationships are fully disclosed in an offer or, for arrangements entered into after submission of an offer, before the arrangement becomes effective. The Government will not normally require or encourage the dissolution of contractor team arrangements. Latvian Connection LLC has a commercial agent and teaming partner that is also a 5% owner of Latvian Connection LLC and has a Kuwait Business license and Latvian has bid before under this teaming arrangement. The Army, due to its prejudice of Veteran Owned Small Businesses, and discrimination of Latvian Connection LLC are violating the FAR and Government Policy that The Government will recognize the integrity and validity of contractor team arrangements. Latvian Connection LLC is being excluded without the Army Contracting Officer referring the matter to the SBA. GAO, please invite the SBA to comment on this negative determination and ongoing discrimination of Latvian Connection LLC. MAJ Fisher giving the solicitation at 2 minutes until the bid due in time is a JOKE. The Army contracting officer has failed in his duties and for 55 vendors to be invited and Latvian excluded is discrimination of which will be reported to the Secretary of Defense and the Office of Inspector General. Such violations of Professional Standards of Conduct in not upholding Federal Laws, Statutes and Regulations by the Camp Arifjan Legal Counsel will be reported. PLEASE INVITE THE SBA TO COMMENT With the passage of Pub. L. No. 85-536 on July 18, 1958, Congress added the Small Business Act (hereinafter the Act) to the United States Code. In so doing, Congress also explicitly designated the executive branch agency that would be responsible for administering the programs and requirements established under that Act: In order to carry out the policies of this Act there is hereby created an agency under the name “Small Business Administration” (herein referred to as the Administration), which Administration shall be under the general direction and supervision of the President and shall not be affiliated with or be within any other agency or department of the Federal Government. Among the many policies Congress established under the Small Business Act is that of insuring “that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government… be placed with small business enterprises.”3 To effectuate this purpose, Congress stipulated that small business concerns shall “receive any award or contract or any part thereof… as to which it is determined… to be in the interest of RESPONSE TO MOTION TO DISMISS W912D1-15-R-0036 CAMP ARIFIJAN’S 926TH & 408TH APPLIANCES

  6. assuring that a fair proportion of the total purchases and contracts for property and services for the Government in each industry category are placed with small-business concerns… It is SBA’s view that the automatic small business set-aside requirement imposed under 15 U.S.C. § 644(j)(1) and 13 C.F.R. § 125.2(f)(1) applies to this procurement. SBA believes that restricting the application of this requirement solely to contracts that will be awarded and/or performed within the United States and its outlying areas is inconsistent with the intent of Congress, the policies established under the Small Business Act, SBA’s implementation of those policies, and GAO and Federal court precedent EXHIBIT 14 PG3 GAO A contracting agency cannot—merely by the terms of a solicitation—change a matter of responsibility into one of responsiveness. Raymond Engineering, Inc., B–211046, July 12, 1983, 83–2 CPD ¶ 83. Responsibility refers to the bidder's apparent ability and capacity to perform all of the contract requirements; responsiveness concerns whether a bidder has unequivocally offered to provide supplies or services in conformity with the material terms and conditions of the solicitation. See Skyline Credit Corp., B–209193, May 15, 1983, 83–1 CPD ¶257. IV. Latvian Connection LLC Has Been Prejudiced Prejudice requires a reasonable likelihood that Latvian Connection LLC would have been awarded the Contract if the solicitation, RFQ W912D1-15-R-0036 for APPLIANCES was set aside for U.S. Small Businesses exclusively under the Rule of 2. Such a determination is not susceptible to a precise mathematical calculation; rather, prejudice requires only that “but for the agency’s actions, the protestors would have had a reasonable chance of receiving the award. Anthem Alliance for Health, Inc., TRICARE Management Activity – Reconsideration, B-278189.5, July 13, 1998, 98-2 CPD 66. A reasonable possibility of prejudice therefore is sufficient to sustain the protest. United Int’l. Eng’g., Inc., B-245448.3, Jan 29, 1992, 92-1 C.P.D. ¶ 122. Europe Displays, Inc., B-297099. Latvian Connection LLC has been prejudiced by Army from Camp Arifjan since June 2009. The Army have prejudiced the Procurement Integrity of the Rule of 2 by not inviting Latvian Connection LLC when not only their market research shows that Latvian Connection LLC is in Kuwait, but also the Army’s ongoing pattern of systemic discrimination of Veteran Owned Small Business Latvian Connection LLC and Latvian’s GAO protests against the discrimination at the GAO have demonstrated the Latvian has been prejudiced by Camp Arifjan’s Contracting Officer, Contracting Commanders, and the Camp Arifjan’s legal counsel Mr. Charles Wilder despite Mr. Wilder stating that they hope that Latvian Connection LLC will bid on and be awarded contracts. Camp Arifjan’s Legal Counsel Charles Wilder has stated: Please do not feel that ACC‐KU contracting personnel seek to exclude Latvian Connection LLC from competing for our acquisitions. Quite the opposite is true; we are eager to see Latvian win some contracts and to evaluate its performance. Of course we cannot prejudicially favor your quotes for any acquisition. Charles J. Wilder II Legal Counsel ACC‐KU EXHIBIT 2 From: Wilder, Charles J II CIV USARMY 408 CONTR SPT BDE (US) <charles.j.wilder.civ@mail.mil> Sent: 29 December, 2014 10:47 AM To: keven.barnes@latvianconnectionllc.com Subject: RE: [UNCLASSIFIED//NONE] Wishing you the Best in 2015 RESPONSE TO MOTION TO DISMISS W912D1-15-R-0036 CAMP ARIFIJAN’S 926TH & 408TH APPLIANCES

  7. UNCLASSIFIED//NONE Wishing you the best, also, and that you win and perform some contracts. Charles J. Wilder II Legal Counsel ACC‐KU It would appear that superficially, that Latvian Connection LLC is encouraged to bid, but the systemic Organizational Conflicts of Interest and patterns of discrimination against VOSB Latvian Connection LLC which Latvian now protests against the withholding of the solicitation demonstrate that the UNITED STATES ARMY prejudices VETERANS and Veterans will continue to be discriminated against unless they can learn how to file GAO Level Protests or afford to pay a law firm to file on their behalf. It would appear that Congress’ intent is as equally meaningless if the General Officers, Program Managers, Contracting Commanders and legal counsels that defend white collar criminal activity are allowed to remain in positions where they can harm U.S. Small Businesses like Latvian Connection LLC. REQUEST FOR DOCUMENTS Latvian Connection LLC requests that the following materials be included in the agency report, pursuant to 4 C.F.R. § 21.1(d)(2008): W912D1-15-R-0036 APPLIANCES • All Market Research regarding U.S. SMALL BUSINESS concerns in Kuwait. • Signed DD Form 2579, Small Business Coordination Record for solicitation • Source Selection, Bid Abstract and Evaluations for solicitation • Copy of the Army’s PRIVATE OIC bid list • List of the U.S. Small Businesses that placed bids Respectfully submitted, Digitally signed by Keven L. Barnes DN: cn=Keven L. Barnes, o=Kuwait Division, ou=Latvian Connection LLC, email=keven.barnes@latvian connectionllc, c=KW Date: 2015.06.06 00:19:30 +03'00' Keven L. Barnes __________________________ Keven L. Barnes CEO Latvian Connection LLC RESPONSE TO MOTION TO DISMISS W912D1-15-R-0036 CAMP ARIFIJAN’S 926TH & 408TH APPLIANCES